TORONTO — Some evidence exists that could ultimately lead to the conviction of two former senior political aides accused of illegally destroying documents related to an Ontario government decision to cancel two gas plants in 2011, a judge ruled Thursday.
In rejecting defence arguments that the prosecution had no case at all against David Livingston and his deputy Laura Miller, Ontario court Judge Timothy Lipson said the trial should proceed.
At issue in the interim ruling, the judge said, was not whether the Crown’s case was weak but whether it had any case at all.
“At this stage, it is not the court’s function to weigh the evidence, nor to test its quality or reliability,” Lipson said. “I am not entitled to make findings of fact, nor to engage in an assessment of the evidence with a view to determining the guilt or innocence of the defendants.”
Lipson stressed his task was to determine only whether evidence existed to support the prosecution’s case, and that any finding of guilt would ultimately depend on the Crown proving guilt beyond a reasonable doubt.
Livingston, chief of staff to former Liberal premier Dalton McGuinty, and his deputy Miller, had pleaded not guilty to deliberately and illegally destroying documents in 2012 and 2013 related to the government’s contentious decision to cancel and relocate two gas plants before the 2011 election at a cost of more than $1 billion to taxpayers.
Lipson noted the decision “dominated political discussion” at the legislature in 2012 and 2013 and that the opposition and others were hunting for information.
Livingston was clearly alive to those information requests, and at one point instructed staff in the premier’s office about “double deleting” emails, Lipson said. The duo also engaged Miller’s partner, Peter Faist, to wipe computer hard drives in the office.
Faist was not a member of the civil service and had no security clearance. He was paid $10,000 by the Liberal party rather than going through a normal procurement process, and admitted he indiscriminately wiped data from 20 drives.
Lipson did agree with the defence on the absence of evidence to show that any emails or other documents the pair deleted had to be kept in light of freedom of information or legislature committee requests for the data.
Concluding the deleted files or emails were in fact relevant to the prosecution’s case would at best amount to an impermissible “educated guess,” Lipson said. As a result, he allowed the defence’s directed acquittal application in part — downgrading the charge they had committed mischief to data to one of having attempted to commit mischief.
However, the judge also found it would be reasonable to conclude the accused knew the drives had records that should have been retained.
Lipson also allowed a charge of unauthorized use of a computer to proceed.
He noted senior bureaucrats fretted that records related to the gas plants would be destroyed but the accused proceeded to have Faist wipe them anyway. A reasonable observer, the judge said, could conclude the duo fraudulently obtained the administrative rights Faist needed to carry out the hard drive wiping and concealed what they planned to do.
Lipson said he had considered various defence explanations for what happened, but said that didn’t mean the Crown had no case.
The prosecution had already conceded that a third charge on breach of trust could not succeed, and Lipson acquitted the accused on that count.
Following Lipson’s ruling, the defence said it had not decided on next steps, including whether to now call evidence. However, Brian Gover, who represents Livingston, credited the directed acquittal application for the prosecution’s decision to drop the one charge.
“The breach of trust charge carried with it a greater stigma because it included that element of a corrupt purpose,” Gover said. “That’s no longer on the table.”
The hearing will now resume Nov. 16.